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SUPREME COURT OF INDIA
6th September, 1957.
JAGANNADHA DAS, IMAM AND GOVINDA MENON, JJ.
Mobarik Ali Ahmed, Appellate
Versus
The State of Bombay, Respondant.
Criminal Appeal No. 200 of 1956
Advocates appeared
Mr. A. P. Gandhi, Advocate (With permission of the Court) and Mr. J. B. Dadachanji, Advocate of M/s. Rajinder Narain & Co., for Appellant; M/s. H. J. Umrigar and R. H. Dhebar, Advocates for Respondent.
The appellant though at Karachi was making representations to the complainant through letters, telegrams and telephone talks, sometimes directly to the complainant and sometimes through a commission agent that he had ready stock of rice, that he had reserved shipping space and that on a receipt of money be would be in a position to ship the rice forthwith. These representations were made to the complainant at Bombay, notwithstanding that the appellant was making the representations from Karachi. It was as a result of these representations that the complainant parted with his money to the tune of about Rs. 51/2 lakhs on three different dates. It was found that the representations were made without being supported by the requisite facts and that this was so to the knowledge of the appellant and that the representations were so made with an initial dishonest intention.
Held: (1) It appears from S. 5 (1) of the Code of Criminal Procedure that the provisions of the said Code relating to the place of trial assume the existence of substantive liability under the Indian Penal Code or under any other law.
(2) The offence of cheating under S. 420 of the Penal Code as defined in S. 415 of the Code has two essential ingredients, viz. (1) deceit i.e. dishonest or fraudulent misrepresentation to a person, and (2) the inducing of that person thereby to deliver property. All the ingredients necessary for finding the offence of cheating under S. 420 read with S. 415 occurred at Bombay. In that sense the entire offence was committed at Bombay and not merely the consequences, viz, delivery of money which was one of the ingredients of the offence.
(3) Though the appellant was a Pakistani national at the time of the commission of the offence, he must be held guilty and punished under the Penal Code notwithstanding his not being corporally present in India at the time, because on a plain reading S. 2 of the Penal Code applied to him.
(4) The fastening of criminal liability on the appellant, who was a. foreigner, was not to give any extra-territorial operation to the law:, inasmuch as the exercise of criminal jurisdiction in the case, where all the ingredients of the offence occurred within the municipal territory, was exercise of municipal jurisdiction. - Section 46-Surrender under Fugitive Offenders Act, 1881, S.8 conviction if vitiated on the ground that arrest in India was not justified. - Article 136-Lower Courts finding facts against accused-Facts if open to challenge in Supreme Court.
Held: The question whether the evidence discloses only a breach of civil liability or a criminal offence under S. 420, Penal Code, depends upon whether the complainant in parting with his money acted on the representations of the accused and in belief of the truth thereof and whether those representations when made were in fact false to the knowledge of the accused and whether he had a dishonest intention from the outset. If the Courts below find these facts specifically against the accused in categorical terms, the above questions of fact are not open to challenge in the Supreme Court in an appeal on special leave. - Sections 16, 24 (b)-Presumptive evidence of receipt of letter. Held: Illustration (b) to S. 16 only means that each of the facts namely, posting of a letter and the non-return of the original from the Deal Letter office, is relevant. It cannot be read as indicating that without a combination of these facts no presumption as to receipt of the letter can arise. Indeed that section with the Illustrations thereto has nothing to do with presumption but only with relevance. - Sections 45, 47-Proof of genuineness of document-Proof by contents of the document.
Held: The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written 01" the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior, knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject matter of the claim of correspondence, to speak to its authorship.
Judgement
JAGANNADHADAS, J. - This is an appeal by special leave. The appellant before us was convicted by the learned Presidency Magistrate, Third Court, Esplanade, Bombay, for the offence of cheating under S.420 read with S.34 of the Indian Penal Code on three counts of cheating viz. the first relating to a sum of Rs. 2,30,000 and the third relating to a sum of Rs. 2,36,900.
He was sentenced by the learned Magistrate to two years rigorous imprisonment and a fine of Rs. 1,000 on the first count, to twenty-two months rigorous imprisonment and a fine of Rs. 1,000 on the second count, and two months rigorous imprisonment on the third count. It was directed that the substantive sentences only on the second and third counts are to run concurrently.
2. The prosecution was initiated on a private complaint filed by one Luis Antonio Correa on June 30, 1952, against four persons of whom the appellant was designated therein as the first accused and one Santaram as the fourth accused and two other persons A. A. Rowji and S. A. Rowji, as second and third accused respectively. Bailable warrants were issued against all the four by the learned Magistrate but it appears that warrants could not be executed against accused 2,3 and 4.
They were reported as absconding. The trial was accordingly separated as against them and proceeded only as against (the first accused) the 860 appellant herein. The convictions and sentences have been confirmed on appeal by the High Court at Bombay.
3. The complainant is a business-man from Goa and was the Director of a firm in Goa which was trading in the name of Colonial Limitada doing business in import and export. At the relevant time there was severe scarcity of rice in Goa. The complainant was accordingly anxious to import rice urgently into Goa. He got into touch with a friend of his by name Rosario Carvalho in Bombay who was doing business as a Commission Agent.
Carvalho in his turn got into touch with one Jasawalla who was also doing business of Commission Agent at Bombay in the name of Universal Supply Corporation. The Jasawalla was previously in correspondence with the appellant about business in rice. The appellant was at the time in Karachi and was doing business in the name of Atlas Industrial and Trading Corporation and also in the name of Ifthiar Ahmed and Co. The telegraphic address of the complainant was Colodingco and that of the appellant was Ifthy.
As a result of exchange of telegrams, letters and telephone messages between Jasawalla and the appellant on one side, and Jasawalla and the complainant on the other, followed up by direct contacts between the appellant and the complainant through telephone, telegrams and letters, a contract was brought about for purchase, by the complainant from the appellant, of 1,200 tone of rice at the rate of £ 51 per ton, to be shipped from Karachi to Goa.
The contract appears originally to have been for payment of the price in sterling at Karachi. But it is the prosecution case (which has been accepted by both the courts below) that a subsequent arrangement was arrived at between the parties by which the payment was to be made in Bombay in Indian Currency, in view of the difficulties experienced in opening a letter of credit in a Bank at Karachi through the Portuguese Bank at Goa.
It is also the prosecution case, which has been accepted, that the understanding was that 25 of the price was to be paid as advance by the complainant to Jasawalla as the agent of the appellant for this purpose and that on receiving intimation thereof the appellant was to ship the rice and that the balance of the purchase money was to be paid on presentation of the shipping documents. It appears that at a later stage the quantity of rice to be supplied was raised to 2,000 tons and advance to be paid to 50 of the total stipulated price.
It is also the prosecution case that the appellant represented at various stages, by telephone talks, telegrams and letters, to Jasawalla as well as
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